(a) "Commissioner" means the Commissioner of the Division of
Labor, or his or her authorized representative.

(b) "Crane" means a power-operated hoisting machine used in
construction, demolition or excavation work, which has a power-
operated winch and load line and a power-operated boom that moves
laterally by the rotation of the machine on a carrier, and which
has a manufacturer's rated lifting capacity of more than two
thousand pounds. "Crane" does not mean a forklift, digger derrick
truck, bucket truck or any vehicle, aircraft or helicopter, or
equipment which does not have a power-operated winch and load line.

(c) "Emergency basis" means an occurrence of an event,
circumstance or situation that presents an imminent threat to
persons or property and constitutes a serious health or safety
hazard.

(d) "Employer" means any person, firm, corporation or other
entity who hires or permits any individual to work.

(e) "Employee" means any individual employed by an employer
and also as defined by the commissioner.

(f) "Tower crane" means a crane in which a boom, swinging jib,
or other structural member is mounted on a vertical mast or tower.

(g) "Training or training course" means a course approved by
the commissioner which includes some form of testing throughout, or
a final written examination or practical test, or both, which
ensures, or tends to ensure that learning has occurred and that the
objectives of the training have been realized. The commissioner will evaluate whether the approved training adequately demonstrates
competency to safely operate cranes.

WVC 21 - 3 D- 2
§21-3D-2. Certification required; exemptions.

(a) A person may not operate a crane or tower crane without
certification issued under this article except for those persons
exempted under subsection (b) of this section.

(b) A person is not required to obtain certification under
this article if the person:

(1) Is a member of the Department of Defense or Armed Forces
of the United States or an employee of the United States, when such
member or employee is engaged in the work of a crane operator
exclusively for such governmental unit; or

(2) Is primarily an operator of farm machinery who is
performing the work of a crane operator as part of an agricultural
operation; or

(3) Is operating a crane on an emergency basis; or

(4) Is operating a crane for personal use and not for profit
on the site of real property which the person owns or leases; or

(5) Is an Operator-in-Training under the direct supervision of
a certified crane operator and:

(A) Who is enrolled in an industry recognized in-house
training course based on the American National Standards Institute
Standards for Crane Operators and who is employed by the entity
that either taught the training course or contracted to have the
training course taught, all of which is approved by the
commissioner; or

(B) Who is enrolled in an apprenticeship program or training
program for crane operators approved by the United States
Department of Labor, Bureau of Apprenticeship and Training;

(6) Is an employee of and operating a crane at the direction
of any manufacturing plant or other industrial establishment,
including any mill, factory, tannery, paper or pulp mill, mine,
colliery, breaker or mineral processing operation, quarry, refinery
or well or is an employee of and operating a crane at the direction
of the person, firm or corporation who owns or is operating such
plant or establishment;

(7) Is an employee of a public utility operating a crane to
perform work in connection with facilities used to provide a public
service under the jurisdiction of the Public Service Commission,
Federal Energy Regulatory Commission or Federal Communications
Commission; or

(8) Is operating timbering harvesting machinery associated
with the production of timber and the manufacturing of wood
products.

WVC 21 - 3 D- 3
§21-3D-3. Powers and duties of commissioner.

(a) The commissioner shall:

(1) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, which rules at the minimum must include provisions for:

(A) A Class A certification program for individuals who
operate cranes or tower cranes in the State of West Virginia, which
must require both a written examination and a practical
demonstration, and which must be accredited by the American
National Standards Institute's Personnel Certification
Accreditation Program;

(B) A Class B certification program for individuals who
operate cranes or tower cranes in the State of West Virginia, which
must require the successful completion of a training course;

(C) Certification categories including lattice boom truck
cranes; lattice boom crawler cranes; fixed cab-telescoping boom
cranes; swing cab-telescoping boom cranes; and tower cranes:
Provided, That the holders of a certification for the large
telescoping boom crane, upon application for recertification, will
be provided with a one time election to either be certified as an
operator of a fixed-cab or swing-cab telescoping boom crane, and
that holders of a certification for the small telescoping boom
crane, upon application for recertification, will be automatically
certified as a fixed cab operator;

(D) Class A certification renewal requirements of individuals
who operate cranes in the State of West Virginia, that must include
a written examination and a current physician's certificate at least every five years; and

(E) Class B certification renewal requirements of individuals
who operate cranes in the State of West Virginia, that must include
the successful completion of a training course approved by the
commissioner;

(2) Prescribe application forms for original and renewal
certification;

(3) Set application fees in amounts that are reasonable and
necessary to defray the costs of the administration of this article
in an amount not to exceed $75 per year;

(4) Set examination and training course fees in an amount not
to exceed the actual cost of the examination and the training
course;

(5) Administer or cause to be administered the written
examination, practical demonstrations and the training course as
required for certification;

(6) Determine the standards for acceptable performance on the
written examination, practical demonstration and the required
training course: Provided, That the minimum standards must be
consistent with national standards, current operating procedures
and technology and be transferable to other states where possible;

(7) Provide the option for applicants and crane operators to
take examinations that meet or exceed requirements for national
crane operator certification; and

(8) Take other action as necessary to enforce this article.

(b) The commissioner, or his or her designee, upon receipt of
information that a person has engaged in or is engaging in an act that constitutes a violation of this article, may issue a notice to
the person to cease and desist and may apply to the circuit court
for an order enjoining the act. Upon a showing that the person has
engaged in or is engaging in an act that constitutes a violation of
this article, the court may order an injunction, restraining order
or other order as the court considers appropriate.

WVC 21 - 3 D- 4
§21-3D-4. Minimum certification requirements.

(a) The commissioner shall certify an applicant who:

(1) Is at least eighteen years of age;

(2) Meets the application requirements as prescribed by rule;

(3) Passes the written examination;

(4) Passes the practical demonstration: Provided, That the
practical demonstration approved by the commissioner may be
administered on-site by a qualified company representative;

(5) Presents the original, or a photographic copy, of a
physician's certificate that he or she is physically qualified to
drive a commercial motor vehicle as required by 49 C.F.R. §391.41,
as of the effective date of this article or an equivalent
physician's certificate as approved by the commissioner; and

(6) Pays the appropriate fees.

(b) Certification issued under this article is valid
throughout the state and is not assignable or transferable, and is
valid for one year from the date on which it was issued.

(c) Notwithstanding any other provision of this article to the
contrary, the commissioner shall establish a dual classification
system of certification as follows:

(1) Class A certification, which will provide eligibility for
national certification, and for which the applicant must achieve a
passing score of seventy on the national commission for the
certification of crane operators written examination;

(2) Class B certification, for which the commissioner may
accept a lesser score on the national commission for the
certification of crane operators written examination: Provided, That this score may not be less than sixty for Class B
certification.

(d) On and after November 10, 2014:

(1) All individuals who operate cranes in the State of West
Virginia which are governed by the provisions of the Occupational
Safety and Health Administration of the United States Department of
Labor, 29 C.F.R §1926.1400, Subpart CC, are required to hold a
Class A certification; and

(2) All individuals who operate cranes in the State of West
Virginia which are not governed by any provision of the
Occupational Safety and Health Administration of the United States
Department of Labor are required to hold a Class B certification.

(b) A violation of this article or rule adopted pursuant to
this article is grounds for the denial, suspension, revocation or
refusal to reinstate certification and permits the imposition of
disciplinary action: Provided, That no disciplinary action against
a crane operator may be imposed without a proper prior notice as
served under section one, article two, chapter fifty-six of this
code, and an opportunity for hearing held before the commissioner
or his designee wherein the crane operator will be provided the
opportunity to present evidence in person, by counsel or both and
after which, if the commissioner finds a violation of this article
has occurred, the commissioner may impose any disciplinary action
permitted in this article: Provided, however, That the provisions
of subsection (e) of section seven of this article have not been
met.

(c) Operation of a crane in violation of this article or other
provision of this code may result in the suspension of
certification for not less than twenty-four hours nor more than one
year, or revocation of certification until reinstated.

(d) Each certified crane operator shall carry proof of
certification on his or her person during operation of a crane.

(e) A person whose certification has been revoked may apply for certification one year after the date of the revocation.

WVC 21 - 3 D- 6
§21-3D-6. Effect of accident.
(a) The commissioner may suspend or revoke the certification
of a person involved in an accident relating to the operation of a
crane by that person: Provided, That no disciplinary action
against a crane operator may be imposed without a proper prior
notice as served under section one, article two, chapter fifty-six
of this code, and hearing held before the commissioner or his or
her designee wherein the crane operator will be provided the
opportunity to present evidence in person, by counsel or both and
after which, the commissioner finds a violation of this article has
occurred, the commissioner may impose any disciplinary action
permitted in this article: Provided, however, That the provisions
of subsection (e) of section seven of this article have not been
met.

(b) If the commissioner makes a finding that the accident was
caused by the actions or omissions of the certificate holder, the
commissioner may require the certificate holder to retake and pass
the written certification examination, or practical demonstration
or both the certification examination and the practical
demonstration or successfully completes a training course approved
by the commissioner before the certificate holder may apply to have
the certification reinstated.

WVC 21 - 3 D- 7
§21-3D-7. Penalties.
(a) A person required to obtain certification under this
article, who operates a crane or tower crane without certification,
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $50 nor more than $500 for each violation.

(b) No person may knowingly or intentionally drive or operate
a crane or tower crane while:

(1) Having any measurable alcohol in his or her system; or

(2) Under the influence of any controlled substance, as
defined by subdivision (d), section one hundred one, article one,
chapter sixty-a of this code; or

(3) Under the combined influence of alcohol and any controlled
substance or any other drug.

A person who violates this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $100 nor more than $1,000. In addition to the fine, the
Commissioner of Labor shall revoke the person's certification for
not less than one year.

(c) An employer who knowingly employs, permits or directs a
person to operate a crane or tower crane without proper
certification is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $1,000 for
each violation.

(d) A person, operating a crane or tower crane, who fails to
produce the certification within twenty-four hours after request of the commissioner or his or her authorized representative, is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $50 nor more than $100.

(e) If a person is convicted for an offense described in this
section, and does not act to appeal the conviction within the time
periods as hereinafter described, then the person's certification
may be revoked or suspended in accordance with the provisions of
this article, and, further:

(1) The clerk of the court in which a person is convicted for
an offense described in this section shall forward to the
commissioner a transcript of the judgment of conviction. If the
conviction is the judgment of a magistrate court, the magistrate
court clerk shall forward the transcript when the person convicted
has not requested an appeal within twenty days of the sentencing
for such conviction. If the conviction is the judgment of a
circuit court, the circuit clerk shall forward the transcript when
the person convicted has not filed a notice of intent to file a
petition for appeal or writ of error within thirty days after the
judgment was entered; and

(2) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted for any of the offenses described in this section, the
commissioner shall make and enter an order revoking or suspending
the person's certificate to operate a crane or tower crane in this
state. The order shall contain the reasons for the revocation or suspension and the revocation or suspension periods provided by
this article or by rule. Further, the order shall give the
procedures for requesting a hearing. The person shall be advised
in the order that because of the receipt of a transcript of the
judgment of conviction by the commissioner a presumption exists
that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment
of conviction. A copy of the order shall be forwarded to the
person by registered or certified mail, return receipt requested.
No revocation or suspension shall become effective until ten days
after receipt of a copy of the order; and

(3) The provisions of this subsection do not apply if an order
reinstating the crane or tower crane operator's certification of
the person has been entered by the commissioner prior to the
receipt of the transcript of the judgment of conviction; and

(4) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.

WVC 21-3D-8
§21-3D-8. Crane operator certification fund; fees; disposition
of funds.
(a) There is hereby established a crane operator certification
fund in the state treasurer's office.

(b) The commissioner may set reasonable application fees for
the issuance or renewal of certificates and other services
associated with crane operator certification.

(c)(1) The commissioner shall receive and account for all
money that is derived pursuant to the provisions of this article.
The commissioner shall pay all money collected into the crane
operator certification fund that has been established pursuant to
subsection (a), section eight of this article, with the exception
of money received as fines. This money shall be used exclusively
by the commissioner for purposes of administration and enforcement
of his or her duties pursuant to this article.

(2) Expenditures from the crane operator certification fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code: Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-nine,
expenditures are authorized from collections rather than pursuant
to an appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for purposes
set forth in this article may be transferred to other accounts or
funds and redesignated for other purposes by appropriation of the
Legislature.

WVC 21 - 3 D- 9
§21-3D-9. Reciprocity.

The commissioner, in his or her discretion, may grant
certification to persons certified by other states, without
examination or without the required training upon satisfactory
proof that the qualifications for the applicants are equal to the
qualifications of this state: Provided, That the other states
extend similar reciprocity privileges to persons certified by this
state.
Note: WV Code updated with legislation passed through the 2014 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.